9. Postscript - Malcolm Kennedy (1947-2013) a fighter for justice

A victim of a grotesque miscarriage of justice has died aged 67. Malcolm Kennedy will go to his grave having been unable to overturn his conviction for the manslaughter of Patrick Quinn in Hammersmith Police Station on Christmas Eve 1990.

Quinn certainly was slaughtered. All but one of his ribs were broken, his heart and spleen were crushed and his face pulped in a vicious, brutal attack that left him dead in a police cell where both men had been placed after being separately arrested for being drunk.

Middle-aged and unfit, Kennedy had no previous history of violence but according to the police he had woken from his drunken stupor to kill a man he had never met. Kennedy claimed he had been woken up by a struggle in the cell between three officers and the dead man and had been punched unconscious.

The murder of Quinn was considered so serious by the police that officers on duty cleaned the uniforms they were supposed to hand over for forensic tests, the log book showing who visited the cell was "lost" (just one of several vital documents which disappeared) and procedures for calling in the Police Complaints Authority and pathologist were not followed. None of which mattered when a protesting Kennedy was convicted the following year for murder and sent down for life.

Kennedy was having none of that. He had no record of political activity but he was determined not to go to his grave with a murder conviction. His solicitors located new witnesses who were present in the police station on the night of Quinn’s death and a major World in Action programme was made on the case.

The case was referred back to the Court of Appeal and a retrial was ordered at which the sudden appearance of previously lost police ‘evidence’ halted a trial that was going badly for the prosecution. When the case returned to court Kennedy’s case was dealt a major blow when the key police witness was declared mentally unfit to give evidence and the judge in the case dismissed Kennedy’s argument that this prevented him having a fair trial.

At the end of the second re-trial the judge put to the jury that Kennedy may not have intended to kill Quinn and was so drunk that he could not remember what he had done. The jury acquitted Kennedy of murder and convicted him of the lesser charge of manslaughter, a perverse verdict as Quinn’s injuries clearly indicated he’d been brutally murdered.

Kennedy was sentenced to 9 years imprisonment. Thankfully for him there were now plenty of people convinced of his innocence. Hackney Community Defence Association [HCDA] together with members of the Irish community based at the Irish Centre in Hammersmith, formed the Justice for Patrick Quinn, Free Malcolm Kennedy campaign and were to regularly picket Hammersmith Police Station over many years.

In 1996 in the lead up to Kennedy’s appeal against his conviction an early day House of Commons motion attracted 65 signatures. This was made on the grounds that the trial judge wrongly exercised his discretion by deciding that the police officer was medically unfit to give evidence and then in his absence allowing transcripts of his evidence in previous hearings to be read out in open court. Further, that it was an abuse of process for the second re-trial to continue without the police officer giving evidence. The appeal however was lost.

Later, when he had been released from prison, Kennedy’s attempts to take his case to the European Court of Human Rights were also unsuccessful.

No sane person wants to go to their grave having been wrongly convicted of another man’s death, even if it is of the lesser charge of manslaughter rather than murder. Kennedy was determined to legally prove he did not kill Patrick Quinn.

During the protracted court cases officers from Hammersmith Police station had disputed ever previously knowing who Patrick Quinn was prior to his arrest. This meant there was no motive for police officers to attack Quinn.

Yet, thirteen years after Quinn’s death someone who knew him well came forward after he saw a campaign appeal for new witnesses in the Irish press. Joseph Fallon had also died in Hammersmith Police Station in contested circumstances, on 17 September 1987, and the new witness had subsequently helped organise Fallon’s funeral.

Interesting, but what had that to do with Quinn? “They were best friends.”

So much so that the new witness alleged that at 7.00am on 24 December 24 1990 he was rung by the police to be told that Patrick Quinn, who he had known since 1967, had died in Hammersmith Police Station.

According to the man Quinn, like Fallon, was a passionate Republican who often had arguments with the local police.

Asked why he thought the police had contacted him less than 6 hours after Quinn had been confirmed as being dead the Tyrone man felt “it could have been because they had my name in there because of Joe Fallon. My opinion would be that they [the police] knew Patrick Quinn knew Joe Fallon” and as such the man was contacted because of his concern three years earlier when Fallon died.

Despite the new evidence the Criminal Cases Review Commission refused to examine it.

Meantime, Kennedy, who prior to being incarcerated had owned a restaurant, had emerged from prison to start rebuilding his life by setting up a small removals business.

This became increasingly difficult due to what he alleged was “highly intrusive and unlawful surveillance” including interference with his phones, mail and emails. This had the effect of blocking him from going about his everyday affairs whilst preventing potential customers making contact with his removals firm and thus losing him a lot of business.

However, Kennedy’s strenuous attempts to pursue a legal case here in Britain and in the European Court of Human Rights were to prove unsuccessful

Three years ago, Kennedy admitted he was not hopeful of “having my manslaughter conviction overturned in my lifetime.

I feel the statement obtained in October 2003, disproving the police claims about not previously knowing Patrick Quinn, was new evidence. Yet the CCRC wouldn’t commit any resources into taking their own statement and re-opening the case. Consequently I am blocked from appealing against my conviction.

It may be twenty years on but I am still haunted by what happened in 1990. Especially as I am still being harassed due to an ongoing police interest in me. I hoped this would stop when I formally stopped campaigning a few years ago in order to enjoy some relative peace. Sadly that hasn’t proven to be the case, and I still find my phones, emails and letters being interfered with and I suspect that will continue until my death. [It did]

But, I repeat, and always will - I was not responsible for the death of Patrick Quinn in Hammersmith Police Station in December 1990.”

Graham Smith, a close friend of Malcolm Kennedy, said, “The juries in the three murder trials Malcolm faced were not simply deciding whether he had killed Patrick Quinn. If Malcolm didn’t murder Quinn a police officer must have done it. In 1990, despite the numerous campaigns against miscarriages of justice up and down the country, there was not the widespread disbelief in the police that followed the overturning of the murder convictions of the Birmingham Six in 1991.

“More recently, there have been the revelations that a Metropolitan police officer most probably killed Blair Peach at Southall in 1979, and South Yorkshire Police conspired to blame Liverpool fans for their deaths at Hillsborough in 1989 in order to deflect attention from their own failings.

“After his release from prison, Malcolm helped others who had been wrongly convicted. He developed an interest in filmmaking and would often be seen at meetings with cameras and recording equipment. A fighter to the end, he unsuccessfully challenged the lawfulness of UK law governing surveillance in the European Court of Human Rights in 2010 and at his death was attempting to discover what undercover cop, Mark Jenner, who had infiltrated the Colin Roach Centre where the Free Malcolm Kennedy Campaign Justice for Patrick Quinn, was based, had told his Met handlers about Malcolm’s case.”

The following piece comes from issue 2 of RPM, which at the time was the magazine of the Colin Roach Centre in Hackney. It will allow the reader to understand the background to Malcolm's story:
Issue 2 - Revolutions Per Minute - September 1996

FREE MALCOLM KENNEDY - JUSTICE FOR PATRICK QUINN CAMPAIGN

The case of Malcolm Kennedy and Patrick Quinn must rank among the most worrying of the many miscarriages of British justice. It involves not only the conviction of an innocent man but also the so far successful cover-up of a murder committed by police officers. Kennedy from Hackney, a middle aged slightly-built man with no history of violence, was arrested for drunkenness in the early hours of Christmas Eve 1990. He was taken to Hammersmith Police station and locked in a cell where he fell asleep. Patrick Quinn (from Donegal in Ireland) also arrested for being drunk, ended up in the same cell.

Kennedy was woken up by a struggle in the cell, between a police officer and Quinn. He tried to intervene but was punched unconscious. Later he was woken up by 3 policemen in the cell. Patrick's body was on the floor, all but one of his ribs smashed, his heart and spleen crushed, his face pulped. The 3 officers told Malcolm "you did this."

The police investigation into Quinn's death was either utterly incompetent or not an investigation at all, but an attempt to conceal the factors. Officers had (and took) the opportunity to clean the uniforms they were supposed to hand over for forensic tests, the log book showing who visited the cell was "lost" (just one of several vital documents which have disappeared). Procedures for calling in the Police Complaints Authority and pathologist were not followed.

It was only after Malcolm was convicted of murder and sentenced to life in mid 1991, that the police case started to unravel. A World in Action investigation found that the time of another arrest had been altered in order to get 2 officers - Emlyn Welch and Paul Giles - out of the station at the time Quinn died, and the more the paperwork (that is the paperwork that hadn't been mysteriously "lost") was examined the more it looked like the officers were lying about the whole course of events that night.

The case went back to the Court of Appeal on 11.2.93 which ordered a retrial so as the jury could hear all the evidence. At the Court of Appeal PC Welsh revealed that he had conveniently "found" his "lost" notebook; he'd had it in a wallet stuck behind his new pocketbook and had carried it around for months without knowing! Unfortunately for PC Welsh when he was asked to show where he'd had the notebook, he couldn't fit it back in the wallet.

When Malcolm's re-trial started (on 8.9.93) it looked as though he had a good chance of being acquitted. It looked even better when PC Giles started his evidence. It not only became obvious that he was tangled up in a hopeless web of lies, but it seemed possible that he would give up and name Quinn's real murderer(s). Then a policeman sitting in court as Exhibits Officer, suddenly found a vital piece of missing evidence as he flicked through a file.

Despite the fact that 3 separate investigations had searched that file for that piece of evidence, and not found it, the Judge refused to accept that this was a blatant forgery and the trial had to be abandoned.

Just before the new trial began (on 26.2.94) the Prosecution announced that PC Giles had gone mad and could not give evidence. It has since emerged that Giles' "madness" is only brought on by being asked questions about the death of Patrick Quinn! The trial ended on 6.5.94 with the jury, under pressure from the Judge, finding Malcolm guilty of the compromise charge of Manslaughter. The Judge sentenced him to 9 years imprisonment.

After over two years solid campaigning and an Early Day Motion signed by 65 MPs, Malcolm's Appeal was heard on 2nd July 1996. His appeal grounds were:

· that the trial judge wrongly exercised his discretion by deciding that PC Giles was medically unfit to give evidence and allowing transcripts of his evidence in previous hearings to be read out in open court.
· that it was an abuse of process for the second re-trial to continue without PC Giles giving evidence.

Prior to the Appeal there had been three dramatic developments :

· the reason given for PC Giles non-appearance at the second re-trial was that he would suffer irreparable mental damage. Kennedy's defence counsel, Michael Mansfield QC, argued that Giles was deceiving Crown psychiatrists. Events appear to have proved him right. Giles is now proceeding with a libel claim against Granada Television's World in Action documentary programme and he will be giving evidence in those proceedings.
· Kennedy's first re-trial was abandoned after the discovery of a 'missing' computer print out. The Crown maintained that the document could not be forged, and it was of major significance in the second re-trial. However, prior to the final appeal, the police conceded forgery is possible.
· A communications expert has examined the reliability of reading out Giles' evidence in the second re-trial. He concludes that the reading "posed superhuman mental demands upon the jury" and they were consequently unable to form an accurate judgement on his reliability and truthfulness as a witness.

On Tuesday 16th July 1996 Malcolm's appeal against Manslaughter was lost. The 3 High Court Judges would not accept any of the grounds put forward by Mike Mansfield QC, Malcolm's barrister, and would not accept that Malcolm had not had a fair trial even though PC Giles was absent.

Malcolm will now take his case to the European Court of Human Rights. In this case we have two victims of police crime. Patrick Quinn suffered a brutal death, his injuries included 33 fractured ribs, crushed heart and larynx - and Malcolm Kennedy has been falsely convicted of a crime he did not commit. The Quinn and Kennedy families have also suffered greatly. Patrick Quinn's family, who wish to see justice done, have attended the Old Bailey on 3 separate occasions and have had to sit and watch police officers squirm in the witness box. They are still none the wiser as to who was responsible for their brother's death. Kennedy's father and aunt have been interrogated by prison officers about what happened that night, causing them much stress.

Over the past 5 years it has become common knowledge that police officers commit crimes. In the past year 2 separate juries have reached unlawful killing verdicts following the deaths of Richard O'Brien and Shiji Lapite in police custody.

The Campaign goes on - MALCOLM KENNEDY IS DETERMINED TO CLEAR HIS NAME AND THERE MUST BE JUSTICE FOR PATRICK QUINN AND HIS FAMILY.

Footnote - Malcolm Kennedy was refused leave to take his case to the European Court of Human Rights. To this date he continues to protest his innocence.

From Lobster No 40, Summer 2000 www.lobster-magazine.co.uk"A MOST EXTRAORDINARY CASE"
[NB the provisions referred to as being in the RIP Bill Section 56 (second to last para) are now contained in Section 65 of the RIP Act 2000]

Malcolm Kennedy says his telephones, post and email are being interfered with. His attempts to seek answers have left him in a bureaucratic maze.

by Jane Affleck

BACKGROUND

"A most extraordinary case" said Michael Mansfield QC, describing the events at Hammersmith Police Station on the night of December 23/24 1990. Two men - Patrick Quinn, and, later, Malcolm Kennedy - were arrested and put in the same police cell for drunkenness, and Quinn was later found dead with severe injuries.

Kennedy, who had no previous convictions or history of violence, maintained that Quinn had been killed by the police, and that he was framed for the killing.

In September 1991, Malcolm Kennedy was sentenced at the Old Bailey to life imprisonment for Quinn's murder, despite evidence that crucial police logs had gone missing, and conflicting accounts from police officers of events on the night.

A Police Complaints Authority investigation in 1992 "was hampered by missing prosecution papers, police notebooks, and officers declining to be interviewed..." (Independent September 10 1992) In April 1992 a World in Action programme on the case produced new documentary evidence and witnesses which apeared to contradict the police version of events on the night, and this new evidence was heard at an appeal, in February 1993, at which Kennedy's conviction was overturned and a retrial ordered. In June 1993, Kennedy was granted bail pending the retrial.

The first retrial in September 1993 was abandoned after further new documentary evidence was produced by the police. This was a computer-aided despatch print-out which logged timings of police messages on the night of Dec 23/24 1990, and seemed to confirm the police version of movements and timings; it had apparently been missing since Dec 1990. After a second retrial in May 1994 Kennedy was convicted of manslaughter and sentenced to nine years imprisonment. During this trial, Kennedy's barrister, Michael Mansfield QC, said there had been a police cover up: "every category of police document in the case had, since 1990, been suppressed, gone missing, or been forged" and police officers at Hammersmith had "closed ranks, closed doors, closed files" (Independent February 26 1994). A key police officer in the case, who was on duty at Hammersmith Police Station on the night in question, and was alleged in court to have had a history of violence was unable to testify at the retrial because he had been diagnosed as mentally ill and unable to give evidence.

Serious concerns were immediately expressed about the safety of Kennedy's conviction, and within a few days an Early Day Motion was tabled by Chris Mullin MP (May 10 1994, No. 1207) It began: "This House notes with concern the conviction of Malcolm Kennedy for the manslaughter of Patrick Quinn..." and ended "...believes that the conviction of Mr Kennedy is unsafe and invites the Appeal Court to rule accordingly." The EDM was signed by 65 MPs.

Later that month Chris Mullin in a Parliamentary Question to the Attorney General, Sir Nicholas Lyell, about the failure of the CPS to call the key police officer as a witness at Kennedy's trial, asked "Is the Attorney General aware that there is a widespread feeling.......that a serious miscarriage of justice has occurred in this case?"

And in December 1994 the Hackney Community Defence Association produced a booklet entitled "Who Killed Patrick Quinn? The Framing of Malcolm Kennedy."

Kennedy was released on parole in June 1996. A further appeal was dismissed. Previously a restaurant owner, he was left with nothing and initially found accommodation with a housing association for ex-prisoners. In August 1998, Granada TV paid out a reported £2 million in compensation and legal costs in a libel settlement, and apologised in the High Court to the three police officers which the April 1992 World in Action programme had claimed were involved in the cover up of Quinn's death.

WHAT KENNEDY SAYS IS HAPPENING

Today Malcolm Kennedy, now 53, has his own business in Hackney, North London, doing small moves. Except he says he is prevented from doing so because of constant interference with his communications. His main complaint is that incoming business calls from his local area - on which his business is totally reliant - are being blocked to a greater or lesser extent. The degree to which this happens varies, Kennedy says, and until last year he had enough work getting through to get by. But in 1999, he noticed a decrease in his incoming calls, and reckoned 75% were being cut; more recently things have deteriorated further, and, he says, only perhaps 5% are getting through, few of these being genuine enquiries, leading to around onejob a day, despite an increase in advertising and competitive prices. He also reports difficulties making outgoing calls, saying he is frequently told the number has not been recognised.

How does Kennedy know this? When he first set up a similar business in the same area in 1997 he was getting plenty of work from just one small advertisement, for a "man with a van". He later became aware that calls were not coming in, and now, with five advertisements in various local directories, two websites and three different phone numbers, (two landlines - BT and Cable London - and a mobile) and a bouyant economy Kennedy says he gets virtually no serious enquiries, (during the last month (April-May 2000) he reports only one or two genuine enquiries per day) the majority of calls being what he describes as "spoof" calls - mainly false enquiries.

For example, Kennedy reports getting veiled threats, particularly concerning healthcare and health insurance; and many calls messing him around in connection with van hire (eg cancelled at short notice), and the phone being hung up on him. On one occasion, two years ago, he says part of a previous conversation was played back to him when he answered the phone.

Kennedy's main complaint of call barring is difficult to prove. He says people trying to phone him report getting a variety of signals including a fax tone; engaged tone; an electronic tone; messages saying the number is no longer available, has not been recognised, check and redial, or there is a fault and try again later. He has himself tested his line recently by calling his number from various other places, and reports getting all the above signals. Customers have told him they have had difficulty getting through to his number. Last year Kennedy says he worked from a mobile phone registered under a different name, and put an advertisement in the Islington Gazette. He says that this new phone number and small ad brought him consistent work - one or two jobs a day - for a couple of weeks - then the calls dried up completely. He has also used Talking Pages, which gives out the details of local businesses to enquirers. Kennedy says he knows that between December 1999 and March 2000 his details were given out at least 130 times by Talking Pages but, despite having a dedicated phone line for TP, he only received four jobs and some spoof calls over a four month period.

Kennedy's flat and van have both, he says, been entered, with no sign of a break-in; his flat several times when he was out, when things have been disturbed but nothing of value taken. On one occasion he says three £20 notes were exchanged for £10 notes. His van was also entered, and a large ashtray removed from the dashboard, the van left locked up again. He says emails that he knows have been sent are not getting through, and both outgoing and incoming post are frequently delayed in such a way as to cause much inconvenience, arrives with two frankings for different days, or doesn't arrive at all.

Why?

Kennedy is convinced that there is a connection with his high-profile criminal case, during which his defence said Kennedy was framed by the police and that the police on duty that night in Hammersmith police station were involved with Quinn's death, or, at least, knew what happened and covered up.

Kennnedy speculates that Special Branch and/or MI5 may be involved, and suspects that an interception warrant, established during his case, is being constantly renewed. He believes the intention is to damage his business and keep him impoverished.

There is no hard evidence for Kennedy's claims. Why do calls from myself and others get through? Kennedy reckons that these are not barred because they are from outside the area, or from cleared numbers. Enquiries suggest that the type of interference said to be occurring is probably technically feasible - but pretty much impossible to prove.

ATTEMPTS TO GET AN EXPLANATION

In his attempts to seek a cessation of the interference and disruption to his communications, Kennedy has written to, in his words "everyone I can". He has approached all the relevant authorities including his telephone service provider, Cable London, the telecommunications regulatory body Oftel, his Member of Parliament Brian Sedgemore, the Home Secretary Jack Straw, the Metropolitan Police and the Interception of Communications Tribunal. His enquiries have taken him into a bureaucratic wilderness, and provided no satisfactory answers.

Cable London say they have carried out numerous investigations and found no technical fault with the service. A letter from Cable London to Kennedy in June 1999 says "Over the last two months Cable London has carried out 8 separate investigations into the reported problems with your telephone service. On each occasion we have been unable to find any fault within our network, or from any interconnected network, relating to the service problems reported". By August 1999, Cable London were suggesting Kennedy "subscribe to another operator such as British Telecom"!

After sending details of his complaints to Oftel, they replied in July 1999, saying "We have considered all the papers related to your case, and are unable to assist you further."

Kennedy wrote to the Home Secretary, Jack Straw, three times in June/July 1999. The replies, from the Intelligence and Security Liaison Unit of the Home Office Organised and International Crime Directorate (12 Aug 1999) and from the Home Secretary's Advisory Board, Metropolitan Police Committee(30 Sept 1999) referred him either to the Police Complaints Authority, which supervises complaints against the police, or to the Interception of Communications Tribunal, which can investigate questions relating to interception authorised by a Secretary of State.

Kennedy had previously taken his complaints to both the police and the ICT, receiving a letter from a Detective Inspector of the Organised Crime Group of the Metropolitan Police (9 July 1999) which stated that after making extensive enquiries into the matter: "it transpires that there is no evidence of any illegal activity to Mr Kennedy's detriment, neither is there any evidence of physical or technical malfunction of his telephone system", and from the Interception of Communications Tribunal (2 November 1998) stating that they were satisfied "that there has been no contravention of Sections 2 to 5 of the Interception of Communications Act 1985 in relation to a relevant warrant or relevant certificate".

[Sections 2 to 5 of the IOCA 1985 deal with the issuing, renewal and duration of interception warrants]

A further letter from the Tribunal (6 April 1999) states that "The Interception of Communications Act 1985 does not allow for the barring of calls as you describe Kennedy's main complaint] nor indeed the diverting or discontinuation of any call(s). Similarly it does not allow the prevention or re-directing of postal communications."

Kennedy expressed concern to his MP, Brian Sedgemore, about the inability of the ICT to deal with his complaint, and Sedgemore wrote to the Home Secretary on December 1 1998 expressing these concerns about the Tribunal and that, depending on the basis on which they formed their decision either "clearly changes in their procedures are needed" (if they have been unable to find out what has been going on) or "changes in the law may be needed for the sake of transparency and justice" (if there was a warrant, but they never say whether or not such a warrant exists).

Straw's reply to Sedgemore, (18 Dec 1998) states that "it is a clear principle of law and practice that people are never told whether or not their communications have been intercepted under warrant...the purpose is to safeguard operational practices and techniques from disclosures which might undermine their effectiveness. Of course, it is possible to intercept a telephone without the authority of a warrant. As I have explained this will generally be unlawful and anyone who suspects that his or her telephone calls are being unlawfully intercepted, as Mr Kennedy maintains is the case, should report the matter to the police".

INTERCEPTION OF COMMUNICATIONS - SCRUTINY INADEQUATE

The Interception of Communications Act 1985 establishes the grounds for lawful interception of communications and sets up the Interception of Communications Tribunal. Under the Act, the interception of a person's mail or telephone calls must be authorised by the issue of a warrant by a Secretary of State. Interception can only be authorised if considered necessary in the interests of national security, for the prevention or detection of serious crime, or to safeguard the economic well-being of the United Kingdom.

This process should be kept under review by the Interception of Communications Commissioner, currently Lord Justice Swinton Thomas, previously Lord Nolan. The problem of properly scrutinising so many warrants (1646 phone tapping warrants in 1998) has been raised by Francis Wheen (Wheen's World, Guardian, 3 May 2000):

"This is no mean feat for a part-timer, especially since each warrant may cover any number of phone-taps on "associates" of the subject."

The Tribunal can only investigate questions relating to interception authorised by a Secretary of State; specifically, whether there was a warrant and, if so, whether it was properly issued. If it finds a warrant to have been improperly issued, the Tribunal can quash it, order destruction of intercepted material, and direct the minister to pay compensation. These powers have not been used as the Tribunal has never found a breach of the Act.

If the Tribunal finds a warrant to have been properly authorised, or that no interception warrant exists, the complainant will be told only that there has been no breach of the Act; it is established policy neither to confirm nor deny whether the Secretary of State has granted an interception warrant in any particular case.

Unauthorised interception is excluded altogether from the Tribunal's remit; section 1 of IOCA makes it a criminal offence to intercept communications in the course of transmission without the authority of a warrant issued by a Secretary of State, and therefore a matter for the police. This is hardly satisfactory because, as Laurence Lustgarten and Ian Leigh state (In From the Cold: National Security and Parliamentary Democracy, Oxford, 1994, p 61), the police may, of course, be the perpetrators.

The inadequacy is reiterated by Laurence Lustgarten and Ian Leigh (In From the Cold: National Security and Parliamentary Democracy, Oxford, 1994, p 64): "Unauthorized interception is, by virtue of Section 1 of the 1985 Act, a criminal offence, but there are no special powers or procedures for dealing with it".

Kafka-esque

This point was taken up by solicitor Tony Murphy, of Bindman and Partners, who has been dealing with Kennedy's claims of telecommunication disruption and interception. Murphy says the ICT is ineffective and in particular is unable to deal with complaints such as Kennedy's. He says there should be some means by which people in Kennedy's position are able to seek an independent investigation/explanation: "The situation in which Malcolm Kennedy finds himself is nothing short of Kafka-esque. The current system appears not to allow for the possibility that the police or security services can act improperly in intercepting communications. This is unacceptable and represents a further indictment on the lack of independent investigation of police complaints."

In October 2000 the Regulation of Investigatory Powers Bill is expected to become law. The RIP Bill broadens the Interception of Communications Act 1985 to include, for example, the use of bugs and interception on private telecommunication systems, and includes controversial new provisions to allow the tapping of emails and access to encrypted data . It will repeal the Interception of Communications Act 1985 and establishes a tribunal which will take the place of both the Interception of Communications Tribunal and the Security Service Tribunal (set up under the Security Service Act 1989. This Act is not repealed). This new tribunal will consider complaints concerning the interception of communications; conduct by or on behalf of any of the intelligence services; entry on or interference with property or interference with wireless telegraphy; and the giving of a notice or any disclosure or use of a key to 'protected information' (data protected by the user eg by passwords or encryption) (RIP Bill Section 56). As before, complainants will only be told whether or not the Act has been breached.

The events of the night of December 23/24 1990 destroyed or damaged the lives of several people. I have met Malcolm Kennedy. He does not appear to be embittered, despite 10 years of, in his own words, "trauma and harassment", and says he does not seek to pursue his previous case anymore; he asks only to be allowed to rebuild his life and put the past behind him.

Malcolm Kennedy believes his telephones, email and post are being interfered with. His persistent attempts to obtain answers have met with brick walls, and his situation has been described as Kafka-esque. Soon his complaint will be one of the first to be heard by the recently established Investigatory Powers Tribunal.

Kennedy served four and a half years of a nine year prison sentence after being found guilty of the manslaughter of Patrick Quinn, an Irish labourer, in May1994. Quinn had been found dead, with severe injuries, in a police cell at Hammersmith Police Station on the night of December 23/24 1990, after first Quinn and later Kennedy had been separately arrested for drunkenness and put in the same cell. Kennedy’s conviction came after 3 trials and an appeal; during the trial, Kennedy’s barrister, Michael Mansfield QC, said that there had been a police cover up: “every category of police document in the case had, since 1990, been suppressed, gone missing, or been forged” and police officers at Hammersmith had “closed ranks, closed doors, closed files.” [Independent February 26 1994]

There was immediate concern about the safety of the conviction; questions were asked in Parliament; an Early Day Motion expressing concern about the safety of the conviction was signed by 65 MPs, and Hackney Community Defence Association published a booklet about the case entitled “Who Killed Patrick Quinn? The framing of Malcolm Kennedy”. Kennedy has always protested his innocence and claimed he was framed by the police for killing Quinn.

After his release from prison in June 1996, Kennedy set up his own business doing small moves and van hire in Hackney, North London, but says that his communications have been subjected to continual interference. In particular, Kennedy says that incoming calls from his local area, on which his business - and income - is dependent, are being blocked to a greater or lesser extent, and that he gets many “spoof” calls which waste his time, but never lead to work.

Kennedy believes the reasons for this disruption are to damage his business, keep him impoverished and to put him under psychological pressure. He speculates that Special Branch and/or MI5 may be involved and that an interception warrant, established during his earlier case, may be being continually renewed. Kennedy says he knows of other cases where people who have been involved with disputes with the police have been subjected to harassment.

To try and remedy this, Kennedy has approached his telecommunications provider, Cable London; Oftel, the telecommunications regulatory body; his MP, Brian Sedgemore; the Home Secretary, Jack Straw; the Metropolitan Police; and the Interception of Communications Tribunal. But without any success. Despite Kennedy’s persistent enquiries, particularly during the past two years, he has been unable to obtain an explanation for what is happening nor a cessation of the interference.

In the meantime, Kennedy says, the call barring and spoof calls continue. On some days, he says, he gets up to 30 nuisance calls, with none leading to work. Also, he says, data sometimes vanishes from his computer. More disturbingly, Kennedy reports that in July last year the steering system of his van was interfered with in a manner which could have caused the steering to fail and a serious accident; and that a mechanic said ‘someone’s trying to kill you mate.’

RECENT DEVELOPMENTS: ATTEMPTS TO OBTAIN PERSONAL DATA FROM GCHQ, MI5 AND THE METROPOLITAN POLICE USING THE DATA PROTECTION ACT 1998

Under the Data Protection Act 1998 [Section 7] an individual (or ‘data subject’) can apply to see what information, either on computer or in a filing system, an organisation (or ‘data controller’) is keeping on them.

[Right of subject access to information held in paper files is available from 24 October 2001 regardless of the date from which the information was held].

During the last year Kennedy has been using the Act, which came into force in March 2000, to make subject access requests to the Security Service, GCHQ and the Metropolitan Police, all of which Kennedy believes to hold information on him.

In response to his subject access request to GCHQ, made July 10 2000, Kennedy received a reply dated July 21 2000, which stated:

“Under the Data Protection Act 1998, GCHQ has notified the Data Protection Commissioner that it processes personal data under four purposes. These are: Staff Administration, Advertising, Marketing and Public Relations, Accounts and Records and Consultancy and Advisory Services. GCHQ holds no personal data on you in any of these categories; we have checked both computer and paper records.

Any other personal data held by GCHQ is exempt from the registration and subject access provisions of the Data Protection Act 1998 on the grounds that such exemption is required for the purposes of safeguarding national security, as provided for in Section 28(1) of the Act. Thus, if it were to be the case that we held any data regarding you, the Data Protection Act would not confer a right of access.

This policy is consistent with the policy of not disclosing information about data held on individuals by all the security and intelligence agencies for the purpose of their statutory functions.

I would point out that a right of appeal exists under section 28 of the Act. The section provides that the exemption described above can be confirmed by a certificate signed by a Minister of the Crown who is a member of the cabinet, or the Attorney General. Any person directly affected by the issuing of such a certificate may appeal against the certificate to the Data Protection Tribunal. It is also possible to appeal on the ground that the certificate does not apply to one’s own data.”

On the plus side, Kennedy’s £10 cheque was returned: “We do not make a charge for such requests”.

Under Section 28 of the DPA, personal data is exempted from any of the provisions of the data protection principles, parts II (subject access provisions) III (notification) and V (enforcement) of the DPA and section 55 - if the exemption ‘is required for the purpose of safeguarding national security’ [DPA s28(1)] as evidenced by a certificate of exemption signed by a ‘Minister of the Crown’ [DPA s28(2)]. In this case the applicant will be told that the Agency holds no information which the applicant is entitled to see (ISC Rpt 1999-2000 para79, www.official-documents.co.uk/document/cm48/4897/4897.htm).

Kennedy wrote on July 27 2000 to request a copy of the certificate which exempts GCHQ from the notification and subject access provisions of the DPA, and received a copy of the certificate, signed on July 30 2000 (quite rapidly, it seems, after Kennedy’s request) by Robin Cook, the Foreign Secretary.

This certificate states that:

‘by section 28(1) of the Data Protection Act 1998, personal data are exempt from any of the provisions of (a) the data protection principles; (b) Parts II, III and V; and (c) section 55 of the Act if the exemption is required for the purpose of safeguarding national security; by subsection 28(2) it is provided that a certificate signed by a Minister of the Crown certifying that the exemption from all or any of the provisions mentioned in subsection 28(1) is or at any time was required for the purpose there mentioned in respect of personal data shall be conclusive evidence of that fact;

by subsection 28(3) it is provided that a certificate under subsection 28(2) may identify the personal data to which it applies by means of a general description and may be expressed to have prospective effect.

Now, therefore, I, the Right Honorable Robin Cook MP, one of Her Majesty’s Principle Secretaries of State, in exercise of the powers conferred by the said section 28(2) do issue this certificate and certify as follows:-’

The certificate goes on to describe and comprehensively list the types of personal data processed by GCHQ that are exempted from the DPA’s provisions “all for the purpose of safeguarding national security”. These include “personal data processed in the performance of the functions described in section 3 of the Intelligence Services Act 1994 (“ISA”) or personal data processed in accordance with section 4 (2)(a) ISA including but not limited to:” There follows a list of 8 categories, including “personal data obtained from the monitoring or interfering with electromagnetic, acoustic and other emissions and any equipment producing such emissions etc (as specified in section 3(1) ISA)” and “personal data recorded, held, organised, adapted, altered, retrieved by or otherwise available to GCHQ.”

Kennedy’s subject access request to MI5 resulted in a similar response from the Security Service. In a letter dated August 3 2000 they responded:

‘Under the Data Protection Act 1998, the Security Service intends to notify the Data Protection Commissioner that it processes personal data for three purposes. These are: staff administration, building security CCTV and commercial agreements. The Security Service has checked its records and holds no personal data about you in any of these categories.’

[Footnote: The Security Service now lists on the Data Protection Register the categories under which it processes personal data as: Staff Administration; Concluding and Performing Commercial Agreements; Property management (CCTV coverage of Thames House) (www.dpr.gov.uk/search.html)]

The reply also points out that:

‘A certificate relating to the work of the Security Service was signed by the Home Secretary on 22 July.’

This exemption certificate, signed on July 22 2000 by Jack Straw, is similar to the GCHQ certificate described above, and details the personal data processed by the Security Service which is exempted from the DPA’s provisions. It includes “Data processing in performance of the functions described in Section 1 of the Security Service Act 1989 as amended by the Security Service Act 1996 including, but not limited to:” The eleven categories then listed include “obtaining personal data from human sources being agents or contacts of the Security Service” and “obtaining personal data from technical sources including from the interception of communications”

Kennedy’s attempts to obtain information from the Metropolitan Police have met with little success. Because of the criminal case he had been involved with, Kennedy had reason to believe the Met would hold personal data on him. A subject access request made on March 9 2000 did not receive a response within 40 days - the maximum time data controllers have to comply with a subject access request. Repeated requests resulted in the release of brief details relating to his previous case; and a letter from the Metropolitan Police Service Data Protection Officer (January 2001) stated that ‘the Commissioner has fulfilled his legal requirements and obligations under the provisions of the Act and supplied you with all the data to which you are entitled.’ Kennedy complained to the Data Protection Commissioner (now Information Commissioner) about the Met’s poor response. In reply, (Dec 19 2000) a Compliance Officer said that:

‘The Data Protection Commissioner is satisfied that the Metropolitan Police Service has made full and proper disclosure to you of all the information to which you are entitled under the Data Protection Act 1998 following your subject access request...’

In contrast, an appeal by Kennedy to the London Mayor, Ken Livingstone, detailing the continual interference with his telecommunications, met with a supportive response. Although the Mayor has no authority in relation to the Metropolitan Police Authority, (established in July 2000 under the Greater London Authority Act 1999 to oversee policing in London) a letter from Lee Jasper, on behalf of Ken Livingstone stated (Feb 13 2001):

‘I have now written to the Chair of the Metropolitan Police Authority, Lord Harris, to enquire from him whether an independent review of your complaint conducted by an independent member of the Metropolitan Police Authority might now be the way forward in seeking to respond to the issues that you raise.’

APPEALING AGAINST EXEMPTION CERTIFICATES

Exemption certificates authorising a blanket ban on access to personal files have been signed by Jack Straw, Home Secretary, and Robin Cook, Foreign Secretary, on behalf of the three intelligence agencies, MI5, MI6 and GCHQ, ‘for the purpose of safeguarding national security’. The validity of such a certificate can be challenged, and all three are being challenged; any person ‘directly affected’ by the issuing of an exemption certificate - not only the data subject - may appeal to the Data Protection Tribunal against the certificate [DPA 1998 s28 (4)]. (The Security Service has received 46 requests, GCHQ 15 and SIS 30 requests to see personal files under the DPA 1998 (Hansard, Commons written answers, January 18 2001).

To hear cases relating to national security, the Data Protection Tribunal is specially constituted, its members designated by the Lord Chancellor [DPA 1998 schedule 6]. This Tribunal hears appeals under DPA s28(4) and (6) either to overturn a decision to issue a certificate or for a determination that a certificate does not apply to the personal data in question, and can allow the appellant to give evidence before it and call witnesses. If the Tribunal finds, applying the principles of judicial review, that the Minister did not have reasonable grounds for issuing the certificate, the Tribunal may allow the appeal and quash the certificate [DPA s28(5)]. [For the rules applying to appeals under the DPA 1998 s28, see The Data Protection Tribunal (National Security Appeals) Rules 2000, SI 2000 No 206, www.legislation.hmso.gov.uk/si/si2000/20000206.htm

The first case to be taken before the Data Protection Tribunal National Security Appeals Panel will be that of Norman Baker MP who is challenging the blanket exemption on national security grounds, and appealing against the refusal of MI5 to grant him subject access to files he has reason to believe the security service hold on him because of his earlier involvement in environmental politics. Following a long-standing policy, MI5 will neither confirm nor deny whether they have a file on Baker. Baker is represented by Liberty, the London-based human rights organisation, and the appeal will be heard on June 26 2001.

Liberty will argue that a blanket ban is incompatible with the Human Rights Act. A successful challenge, with the certificate ruled unlawful, would overturn the blanket ban on access to personal files, and the agency would then have to justify its refusal to grant access, on national security grounds, to any particular file.

[MI5 holds about 440,000 files, of which 290,000 relate to individuals ‘who, at some time during the last 90 years, may have been the subject of Security Service inquiry or investigation.’ Of these, about 20,000 are active files relating to individuals ‘who may be under current investigation by the Service.’ (Hansard, Commons written answers, on July 29 1998 and July 7 1999) ]

KENNEDY’S COMPLAINTS MUST GO BEFORE INVESTIGATORY POWERS TRIBUNAL

In Kennedy’s case, Liberty sought legal advice as to whether he could challenge both MI5 and GCHQ exemption certificates.

Counsel’s opinion considered that Kennedy’s complaint would not be appropriate to be heard before the Data Protection Tribunal because his key complaint concerned interception of his telecommunications by the security services. Section 17 of the Regulation of Investigatory Powers Act 2000 effectively prevents the DPT from considering evidence concerning either the existence of an interception warrant or data obtained under a warrant; but under section 18 (1) (c) such restrictions do not apply to proceedings before the Investigatory Powers Tribunal. Therefore, Kennedy did have a valid claim before the IPT, which, unlike the more restricted remit of the Interception of Communications Tribunal, can hear complaints relating to any conduct ‘by or on behalf of’ the intelligence agencies.

Limitations of the Interception of Communications Tribunal

Kennedy had previously been thwarted from taking a case before the Interception of Communications Tribunal because of its limited remit. Under the Interception of Communications Act 1985 the ICT were limited only to examining whether there was a relevant warrant and, if so, whether there has been any contravention of sections 2 to 5 of IOCA (which deal with the issuing, renewal and duration of interception warrants).

In a letter to Kennedy (November 2 1998) the ICT stated that they were satisfied that in Kennedy’s case ‘there has been no contravention of sections 2 to 5 of the Interception of Communications Act 1985 in relation to a relevant warrant or relevant certificate.’

Unauthorised interception is excluded altogether from the ICT’s remit; section 1 of IOCA makes it a criminal offence to intercept communications without the authority of a warrant issued by a secretary of state, and therefore a matter for the police. This is hardly satisfactory in those situations where an individual considers the police may be the perpetrators.

Neither could the ICT deal with the nature of Kennedy’s complaint: ‘The Interception of Communications Act 1985 does not allow for the barring of calls as you describe nor indeed the diverting or discontinuation of any call(s)’ (letter from ICT to Kennedy April 6 1999) This letter, and a later letter from the ICT (August 6 1999) go on to suggest that Kennedy’s difficulties ‘would appear to be a technical or possibly criminal matter’ which Kennedy should raise with his service provider - something which Kennedy has done persistently - or, presumably, the police, and not a matter within the Tribunal’s remit.

[The Tribunals have faced criticism on other grounds. The Intelligence and Security Ctee Interim Report 2000-01 para 20 refers to a letter sent by the Ctee to the PM in Dec 2000 “to express our concern at the problem in the Tribunals over the processing of complaints” It says: “for a significant period in 2000 the Tribunal did not have sufficient secretariat to enable it to even open the mail, let alone process and investigate complaints.”]

INVESTIGATORY POWERS TRIBUNAL - an amalgamation with broad remit

The Investigatory Powers Tribunal, set up under s65 of RIPA, has a much broader remit than the Interception of Communications Tribunal, which it supercedes. The IPT replaces not only the ICT, but also the Security Service Tribunal, and the Intelligence Services Tribunal.

[Footnote: under transitional arrangements, the old single tribunals continue to exist for cases that were already being considered before October 2 2000. Sir Michael Burton was appointed in June 2000 as the new President of the Interception of Communications Tribunal for a period of 5 years. He has also been appointed Vice President of the IPT - Home Office communication]

The IPT considers all complaints against the intelligence agencies and complaints against public authorities - including police forces - in respect of the powers covered by the RIP Act.

It can examine any complaint relating to “conduct by or on behalf of any of the intelligence agencies” and “conduct for or in connection with the interception of communications in the course of their transmission...” It can consider complaints about both lawful and unlawful actions of the intelligence agencies, and complaints about both warranted and unwarranted interception. It is implied in the wording of the Act that both lawful and unlawful conduct can be considered by the IPT (see footnote, RIPA s65(4)(5)(7)). When asked about this point, a Home Office spokesperson said that while “interception can’t take place without obtaining a warrant personally authorised by the Secretary of State,” however “the Tribunal will hear all allegations and complaints that are put to it”)

The IPT is also the Tribunal to bring proceedings under Human Right Act s7 for actions incompatible with Convention (ECHR) rights concerning the intelligence services [Under HRA 1998 s7(1)(a) a person who claims a public authority has acted in a way which is incompatible with a Convention right may bring proceedings against the authority in the appropriate court or tribunal.]

Unlike the DPT, the IPT cannot quash the Secretary of State’s certificate of exemption from the DPA’s provisions. However, the IPT has the power to make an order 1) quashing any warrant; 2) requiring the destruction of any records of information obtained under a warrant or held by any public authority; 3) to make an award of compensation “or other order as they think fit” [s67(7) RIPA]

The president of the IPT is Lord Justice Mummery (formerly president of both the Security Service Tribunal and the Intelligence Services Tribunal). Seven other members have been appointed.

Represented by Liberty, Kennedy’s complaint will be one of the first to be heard before the IPT, probably in the next few months. John Wadham, Director of Liberty, said: “Liberty believes that the safeguards in the RIP Act are inadequate but that the Human Rights Act and the right to privacy may help us to establish a fairer procedure. If we are successful this will not only help Malcolm but all those who are forced to complain to the Tribunal.”

The Interception of Communications Tribunal has never upheld a complaint. It remains to be seen whether its successor the Investigatory Powers Tribunal with its broader remit, and, particularly, a human rights dimension, will strike a different balance.

Kennedy says his business continues to suffer and he is outraged that the disruption is still going on: “I am left with a deep sense of disappointment that the British State should behave in such an oppressive way. I had previously thought better of them.” But he sounds optimistic. “You get used to it. You either sink or swim, and I’m swimming quite strongly.”

[FOOTNOTE: [s65(4)(5)RIPA] The IPT is the appropriate forum for complaint by any person who is aggrieved by any conduct which he believes to have taken place in relation to him, his property, or any of his communications, and to have taken place in “challengeable circumstances or to have been carried out by or on behalf of any of the intelligence services” where it is conduct by or on behalf of any of the intelligence services; conduct for or in connection with the interception of communications; conduct to which Chapter II of Part I applies; conduct to which Part II applies; the giving of a notice under s49 or any disclosure or use of a key to protected information; any entry on or interference with property or any interference with wireless telegraphy. “Challengeable circumstances” are defined in RIPA s65(7) and include not only where conduct has taken place with authority, but also where ‘circumstances are such that (whether or not there is such authority) it would not have been appropriate for the conduct to take place without it...’]